The East River Fifties Alliance (ERFA) — which has battled against Gamma Real Estate’s proposed 64-story tower since 2015 — is elated the developer’s attorneys have acknowledged in court that planned construction would not violate the neighborhood’s 2017 rezoning until well into 2019. Opponents of the project at 430 E. 58th St. are voicing confidence that timeline will allow them the breathing room to legally block the tower from rising to 800 feet.
City Councilmember Ben Kallos, a project opponent, argues the developer’s court filing suggests it is aware that opponents have the stronger legal argument. Gamma Real Estate proceeding with a “tower-on-a-base” approach to the project that complies with the recent rezoning, he said, is a clear indication the developer doesn’t want to take any chances that the New York State Supreme Court will rule against the tower’s height.
“Developers who build as-of-right don’t hedge their bets,” said Kallos, adding, “Even they know we will likely win.”
The legal clash playing out in court hinges on whether Gamma’s tower should be grandfathered under zoning that existed prior to new regulations ERFA successfully pushed for the neighborhood last year. The new zoning requires that roughly half of the building’s density be below 150 feet, and that it be designed as a “tower-on-a-base.”
Gamma’s Jonathan Kalikow called ERFA and Kallos’ claims that its court filing represented victory — or any retreat from the project’s proposed design — bunk.
The building’s construction timeline, he explained, would not reach a height in violation of the new zoning restrictions until next year, well after an expected Dec. 11 decision by the State Supreme Court judge hearing ERFA’s suit. Gamma has said any halt to construction pending the outcome of the case would cost it $5 million a month. Its lawyers argued in court that due to its construction timeline, opponents of the project would not suffer any “irreparable harm” prior to the judge ruling.
“This representation reflects the fact that construction of the building’s above-grade components is only beginning,” Kalikow said by email. “It does not reflect any lack of confidence on the developer’s part in its right to complete this project and in the overwhelming nature of the evidence establishing its right to do so, nor does it reflect any commitment or obligation on the developer’s part to refrain from proceeding with its project past any particular stage of completion.”
Kalikow added, “To the extent that ERFA suggests otherwise, ERFA is misrepresenting the facts.”
A 47-story residential tower across the street from the Gamma Real Estate project, where some of its opponents live. | Photo by Sydney Pereira
The neighborhood group has been fighting the proposed project since the former developer, Bauhouse Group, first proposed a 1,000-foot tower. Gamma Real Estate foreclosed on Bauhouse, taking control of the site and proposing instead an 800-foot building.
When the E. 58th St. tower was first in the works, ERFA was formed specifically to fight against it and rezone the neighborhood to prevent what the group has described as “out-of-context” buildings.
The rezoning passed the City Council on Nov. 30, 2017 — the critical date by which the developer had to have a “significant” portion of its foundation work finished in order to be grandfathered under the old zoning.
Gamma sought permits from the Departments of Buildings (DOB) and Transportation (DOT) to work after-hours and temporarily close streets, which ERFA and Kallos argue were illegal permits that allowed the developer to race to complete the work before the rezoning vote.
Kalikow said Kallos’ statements about the city agencies’ permits were “false and defamatory.” He did not respond to follow-up questions about the implications of calling Kallos’ statements “defamatory” — a legal term used in libel lawsuits.
For his part, Kallos said that evidence of proper street closure signage, proper notice to the community, and public safety justification for the after-hours permits has yet to be provided by Gamma.
“The developer has not shown me proof positive why something that you can do during regular hours needs to be done after hours for public safety reasons,” Kallos said. “That’s the part I’m most hung up on. If you tell me you can only do foundation work after hours, then that’s fine. Do it on a Sunday from 10 a.m. to 6 p.m., but then don’t spend the other five days a week doing that same foundation work.”
The developer is dismissing the fight over after-hours work permits, arguing that the foundation would have been mostly completed regardless of the last-minute work on Saturdays during the month the Council voted on the rezoning. Even without counting the work done on those days, some 70 percent of the foundation would have been complete, according to documents Gamma filed in the case.
Both the DOT and the DOB have have defended the validity of the permits, and in June, the Board of Standards and Appeals greenlighted the project.
After the BSA decision, ERFA filed an Article 78 suit — a legal challenge to decisions made by government agencies — in New York State Supreme Court.
“We have taken the fight to the courts, and away from agencies that have long been influenced by the power of the real estate development industry,” ERFA’s president, Alan Kersh, said in a written statement.
Whether the Article 78 suit will actually stop the tower remains to be seen — but is a question that could be settled by the court ruling next month.
Kallos is confident that ERFA can win based on the community’s successful rezoning.
“The previous developer never thought the community would be able to do a rezoning,” he said. “We did it. This developer thought he’d be able to pour the foundation before the community could finish their zoning. We beat them.”